Decided on July 14,1995

PRABIR RAY Appellant

Cited Judgements :-



R.P.Gupta, J. - (1.)By this judgment I shall dispose of two Criminal Revision Petition Nos. 1722 and 1723 of 1993 under Section 482 Cr. P.C. both filed by Prabir Kumar Roy. The petitioner seeks quashing of two criminal proceedings spending against him for offences under section 138 of the Negotiable Instruments Act in the Court of the Chief Metropolitan, Magistrate, Calcutta. Prosecution in Criminal Revision No. 1722 is in respect of bouncing of cheque No. 860284 dt. 23.2.1993 for Rs. 38,800/-. In the other revision, the prosecution is regarding bouncing of cheque No. 860282, dt. 24.7.1992 for Rs. 29,100/-. The prosecution have been started by Vinoy Kumar Agarwal, proprietor of M/s. V.K. Agency. The assertions in these petitions are that the accused was given financial assistance by the complainant respondent No.2 and a written agreement dated 13. 11.1991 about this financing was executed between the parties for supply of a wood-cutting machine to the accused petitioner. It is asserted that respondent No.2 obtained signatures of the petitioner on several papers without explaining them to him and no copy was given to him. The respondent No.2 had issued a cheque dated 13.11.1991 for Rs. 1,03,766/- in favour of Mandai Electric Company for payment of price of the machine. The accused petitioner had paid Rs. 27,300/- towards various heads to the complainant respondent No.2 out of which Rs. 23,766/- was part payment towards price. Thus, Rs. 80,000/- remained to be paid towards price. The other payments already made were towards security, caution deposit, service charges, or insurance charges. A total sum of Rs. 1,16,400/- including several charges, was entered as due and it was agreed to be payable in 24 monthly instalments of Rs. 4,850/- each month. It is asserted that the Opposite Party No.2 obtained 10 blank cheques bearing Nos. 860281 to 860290 dated nil from the accused petitioner and the accused signed those blank cheques. It is asserted received notices around 5th August, 1992 regarding two cheques for Rs. 38,800/- and Rs. 29,100/- respectively having been dishonoured by the bank for insufficient fund. He was asked to pay the money on pain of prosecution, in default. The accused asserted that the machine was out of order. The assertion is that the cheques were forged on the blank cheque form signed by the accused. The assertion in the revision petition further is that the entire dispute is of civil nature between the parties and that the prosecution started by respondent No.2 is an abuse of the process of court. The petitioner accused appeared before the court of Chief Metropolitan Magistrate on 15.4. 1993 and was released on bail. It has been asserted that the process was illegally issued against the petitioner for offence under Section 138 of Negotiable Instruments Act, and the material facts were suppressed in filing this complaint by the complainant. It is further asserted that the petitioner had given in writing to the banker of respondent No.2 by letter dated 16. 11.1992 that without prior information from the petitioner, the bank should not present any cheques of respondent No.2 for recovery. It has been prayed that the proceedings before the Chief Metropolitan Magistrate should be quashed.
(2.)This Court, vide order dt. 17.9.1993 directed that the proceedings will be stayed on conditions that the petitioner shall go on paying Rs. 5,000/- per month to the complainant starting from 30th September, 1993 until Rs. 38,800/- and Rs. 29,100/- respectively, are paid.
(3.)During the hearing of two revision petitions, the counsel for petitioner has raised points only. One is that as per copy of a document filed by complainant on the record of the trial Court file and which purports to be a proforma of amounts due and how it is payable. There is a mention that an amount of Rs. 1,16,400/-will be payable in 24 instalments of Rs. 4,850/- each out of which Rs. 4,850/- of 1st instalments has been paid and for the rest 23 instalment post dated cheques were contemplated. The document purports to bear signature of the accused and some other persons who is most likely surety. This document does not mention if the post dated cheques 23 in Nos. have been given or are to be given. The argument of the Counsel for the petitioner is based on assumption that 23 post dated cheques of Rs. 4.850/- were given and, in fact blank cheques 23 in number were given and the amount could be filled by the complainant. The assertion is that the complainant has manipulated the amounts now falsely.

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